Canadian Employment Law Today

6 | January 4, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 derstood the guidelines and agreed to be bound by them. e guidelines included the following: • You may transact business or make entries on your own accounts only in a manner available to non-employee customers. e transactions of close associates must also be established and conducted in the same manner as those of non-employee customers. • Never access customer or employee per- sonal information without a legitimate business reason and proper authorization. • It is your responsibility to safeguard and appropriately handle any confidential in- formation which you have access to. • It is wrong to disclose confidential infor- mation to any other person who does not require the information to carry out their job responsibilities on behalf of Scotia- bank. Scotiabank also required that when some- one's employment was being confirmed for a transaction, staff must obtain the com- pany's phone number from an independent resource and speak to the employer's human resources or payroll department. Employee's friendship with customer revealed In May 2015, Scotiabank's security and inves- tigation department learned that D'Onofrio had processed a mortgage application that contained fraudulent income documenta- tion. It also discovered the customer had a karate school, of which D'Onofrio was aware but didn't include in the application. e de- partment reviewed her email messages with the customer, which further revealed she had provided the maiden name of the customer's mother and the customer's phone number to the customer's ex-wife so she could activate the customer's bank card online. Providing that information without consent — even to a spouse — was a breach of the bank's pri- vacy policy. D'Onofrio was suspended with pay on July 2 while an investigation proceeded. e employee relations department met with D'Onofrio, who described the customer as her best friend. D'Onofrio also said she wasn't aware the employment and income information was fraudulent. She claimed she called the individual who signed the employment letter to verify the customer's income, but the investigation had revealed that the individual didn't work at the com- pany. D'Onofrio also admitted that she had provided the customer's password infor- mation to his wife and accessed the cus- tomer's profile on a daily basis — in fact, she was a joint account holder with the cus- tomer. She said she helped him manage his finances by paying his bills and making sure everything was up to date, as he had a poor credit rating from past issues and she didn't want it to happen again. She had been doing this since the customer's divorce, as his ex- wife had managed his finances before that, D'Onofrio said. She also said she worked hard and if she breached the guidelines, it wasn't intentional and the bank didn't suffer any damage because of it. Scotiabank's investigators determined that D'Onofrio had breached its guidelines by putting herself in a potential conflict of interest by holding a joint account with a customer, failing to protect confidential customer information, failing to properly verify employment information to support a mortgage credit application, and misus- ing her position and access to the bank's systems in a manner not available to non- employees. In addition, Scotiabank found D'Onofrio wasn't straightforward and truthful with investigators by claiming she had verified the customer's employment information when the evidence showed she likely didn't make the call. Her story about the customer's ex-wife managing his fi- nances also didn't make sense if she still had to provide password information to her. Scotiabank determined that D'Onofrio disregarded established policies and pro- cedures that breached the high standard of trust, honesty, and judgment expected of bank employees, and she didn't seem to fully comprehend the seriousness of those breaches. D'Onofrio was dismissed for cause on July 28. Employee didn't try to hide anything D'Onofrio challenged her dismissal, argu- ing she acted in good faith and didn't hide her relationship to the customer from any- one, and her branch manager knew him as well — the customer came to her branch regularly and greeted everyone — so she didn't think it necessary to formally reveal their friendship. She also claimed what seemed like a lack of remorse was due to shock and disbelief at the investigation and her dismissal. She also pointed out she was considered a good employee with a clean record. e adjudicator found it was important to consider that D'Onofrio's branch man- ager knew the customer and was aware of her friendship with him. is likely led D'Onofrio to believe the manager accepted the situation and, if there was any potential conflict of interest, the manager could have advised D'Onofrio of this and instructed her not to take charge of the customer's bank ac- count. Scotiabank couldn't argue D'Onofrio didn't reveal her friendship with the custom- er, the adjudicator said. e adjudicator also found that while D'Onofrio disclosed the customer's pass- word information to the customer's ex-wife, she claimed she knew it by heart and didn't access the system to get it. ere was also no document presented by Scotiabank that she did access the system to get that infor- mation, so the adjudicator couldn't conclude D'Onofrio breached that guideline. As for the employment information on the customer's mortgage application, the adjudicator found D'Onofrio had spoken to both a clerk and the president of the compa- ny for which the customer claimed to have worked, and she obtained contact informa- tion on the Internet. In addition, D'Onofrio actually obtained approval for the applica- tion from her manager, so all indications were she followed the proper procedure for her inquiry. Finally, while the adjudicator agreed that D'Onofrio technically breached the guide- lines by holding an account jointly with the customer, it wasn't an intentional breach and D'Onofrio honestly wanted to help the cus- tomer with his finances. e manager was aware of this and accepted it, said the adju- dicator. e adjudicator found Scotiabank did not have just cause to dismiss D'Onofrio, as her actions didn't significantly breach the guidelines or put the bank at risk. e complaint was upheld, with the remedy still to be decided. "(D'Onofrio) did not commit any theft, embezzlement or serious fraud or gross mis- conduct," said the adjudicator. "ere were no false pretenses by (D'Onofrio). She acted in good faith and may at most have commit- ted an honest mistake." For more information see: • D'onofrio and Bank of Nova Scotia, Re, 2016 CarswellNat 6118 (Can. Lab. Code Adj.). rassment and offensive conduct, and reduce an employer's liability if a human rights complaint is made. Prompt and appropriate action when an internal complaint or prob- lem is noted can further reduce an employ- er's liability. Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright in Calgary office. He can be reached at (403) 267-8225 or tim.mitch- ell@nortonrosefulbright.com. Employee didn't try to hide friendship; manager knew Causing offence « from BANK on page 1 « from ASK AN EXPERT on page 2

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